Labor Unions and Collective Bargaining What is a
Labor Unions and Collective Bargaining
What is a Labor Union? n Collective Action by employees and their representatives targeted at an employer(s). – Trade union: organized by occupations such craft workers in the building and construction trades. – Decentralized bargaining – Controls supply of labor n Collective Action by class of workers targeted toward the political establishment. – Social democratic parties in central Europe.
Characteristics of a Unionized Work Place n Collective Action n Union is the exclusive representative of the employees in the “bargaining unit. ” – No unilateral changes in “terms and conditions of employment” without bargaining with the union. – No bargaining with individual members of the “bargaining unit. ” n Collective Bargaining Agreement (“Contract”) – Stipulates terms and conditions of employment. – Fixed duration.
COLLECTIVE BARGAINING AGREEMENT n A. Union Security Clause n B. Management Rights Clause n C. No Strike/No Lockout Clause n D. Work Rules, Hours of Work & Overtime n E. Non-wage Benefits: Pensions & Welfare n F. Seniority n G. Base Wage Rates, Wage Increases, Shift and Overtime Premiums n H. Grievance Procedures and Arbitration
Our Knowledge of Labor History n Why does the rest of the world celebrate Labor Day on May 1 st ? – …and the U. S. on the first Monday in September? n What event is being commemorated? n The Haymarket Riots of May 1 to 4, 1886. – In Chicago: Desplaines and Randolph Streets – Small protest over strike at Mc. Cormick Plant – Bomb explodes, police killed, strikers beaten, union leaders hung after “show” trials.
European and U. S. Unions Have Different Traditions & Objectives n Differences between Continental and Anglo Unions: – Continental Unions: Evolve out of Social Democratic parties. Centralized bargaining and strong legislative agenda. § E. g. Sweden— 90% of workforce covered. Unions and Employer confederation negotiate economy wide wage scale and working conditions – Anglo Unions: Decentralized unions organized by skill of worker and industry. A firm might negotiate with several different unions, each representing different groups of employees. Weak legislative agenda. n Differences between U. S. and U. K. unions: – Initially both countries outlawed unions. Unions illegal conspiracies in restraint of trade. – Development of U. S. unions followed those in the U. K. by about a generation. – Gradually, legislation recognized unions and their practices. – Labor Party evolves in the U. K. by 1900; unsuccessful in the U. S.
Distinctive U. S. Labor History n More decentralized than Europe—e. g. UAW, USW, Teamsters n Most effective unions are relatively apolitical. n Without emphasis on political action to affect wage/working conditions, collective bargaining and strikes (or the threat of strikes) are key tools. n More industrial unrest than in other countries. n Today, the union management relationship is heavily regulated by labor law & NLRB, partly as a result of that history. (Contrast with European countries. )
Employment-at-Will Doctrine n The principle that the employment relationship is symmetric: – employee can quit without cause and employer can terminate without cause – Applies to hiring, promotions, transfers, and terminations. n Origins in English Common Law
Conspiracy Doctrine n Precedent for this doctrine in British common law. – concerted action by either workers or employers was a criminal activity. n Philadelphia Cordwainers [shoemakers] case of 1806. – court holds that “(A) combination of workmen to raise their wages may be considered in a two fold point of view: one is to benefit themselves. . . the other is to injure those who do not join their society. The rule of law condemns both. ”
World War I Protections n 1. The right of workers to organize in trade unions and to bargain collectively, through chosen representatives, is recognized and affirmed. This right shall not be denied, abridged, or interfered with by the employers in any manner whatsoever. n 2. The right of employers to organize in associations or groups and to bargain collectively, through chosen representatives, is recognized and affirmed. This right shall not be denied, abridged, or interfered with by the workers in any manner whatsoever n 3. Employers should not discharge workers for membership in trade unions, nor for legitimate trade union activities. n 4. The workers, in the exercise of their right to organize, shall not use coercive measures of any kind to induce persons to join their organization, nor to induce employers to deal therewith.
Railway Labor Act (1926) n Congress passes into law a conference report written by railroad and union officials. n Labor disputes should as much as possible be settled by collective bargaining instead of by a national board. n “Adjustment & Mediation Boards” established. n After 1930 Supreme Court decision, 1 st Congressional act protecting workers' “right” to organize.
The National Labor Relations Act (Wagner Act, 1935) n Affirms principles of section 7, National Recovery Act – See WW I protections n National Labor Relations Board (NLRB) – Removes lower level district courts from adjudicating labor relations issues – 5 Member Board & General Counsel’s office List of employer unfair labor practices n Formalizes process of establishing a union. n – No protection for organizational strikes
The NLRB Supreme Courts of Appeals 5 Member Board Appointed by the President and Confirmed by the Senate Administrative Law Judges Regional Directors General Counsel
Section 8(a)(1) of the NLRA n No interference with ``concerted activity'‘ by employees n & other forms of interference: - no threats - no spying - no selective solicitation rules - Weingarten Rights: right to have union official present when disciplined - discrimination
Section 8(a)(3) of the NLRA n No discharges based on union activities or sympathies n No other type of discriminatory treatment: denial of overtime, promotions, or vacation time; discipline; refusal to hire; transfer of work to nonunion plants
Section 8(a)(5) of the NLRA n Duty to bargain in “good faith” n Must bargain with intention of reaching agreement: – Hard bargaining v. “sham” bargaining Must bargain over “mandatory” issues n Must provide information n NO direct bargaining with employees n NO unilateral changes: during organizational drives, during negotiations, during term of contract. n
Remedies n Cease and desist orders n Make whole remedy – No punitive damages – Return plaintiff to economic status had their been no violation of the NLRA. – Responsibility to mitigate damages n Remedies for Section 8(a)(3) violations. n Remedies for Section 8(a)(5) violations.
Growing the Union n New employees in a growing unionized firm – If in the same bargaining unit, covered – New employees or new establishment at another location not automatically part of union n NLRB representation election n Voluntary “card check” recognition n Pre hire agreements (construction only)
Pre-hire Agreements n In construction, a trade union may go to the employer prior to or during a project and demand that she sign on to a local collective bargaining agreement. – Under section 8(f) of the NLRA, legal for union and employer to agree to closed shop. – ER can agree to discharge existing employees and hire union members. n NLRB representation elections have been uncommon in construction. – Project duration too short.
How Unions “Organize” Employees n n Workers approach union leaders Union organizers approach workers outside the workplace Build lists of names, addresses, and phone numbers of employees of targeted employer Designate employees who act as leaders of the organizing effort – Often later become union stewards or members of bargaining committees
Petition n After grassroots work, union officials or employees who are part of the “organizing committee” circulate authorization cards n Cards state that employee authorizes the union to represent them for an NLRB supervised election n Union must collect signatures from 30% of employees, but always collects more
Demand Employer Recognition n (1) Demand voluntary recognition by employer. n n (2) Demand employer neutrality in election (3) Union and employer must bargain over the definition of the “bargaining unit” – Only if a majority have signed authorization cards – “card check” recognition – management trained not to look at cards – Which employees are to be covered? – efforts at “gerrymandering” n (4) NLRB Regional Director imposes unit if parties can not agree. – 20% of the time
Election Campaign n 4 to 6 week campaign – conducted under “laboratory conditions: ” Speech regulated – Cannot make threats and promises contingent on the outcome of the election – Employees have “right” to choose union representation without interference from the employer n Possible to have more than 1 union on the ballot: – E. g. an AFL CIO affiliate and an independent union. n Secret ballot election – Union must secure 50% + 1 of the votes cast
Objections Filed and Hearings by Regional Director n Losing party can file objections to winning party’s campaign conduct – What determines whether the RD sustains or overrules losing party’s objections? – Not did it happen, but did it matter n If objections are sustained: n NLRB won’t hear a union appeal to Regional Director’s decision in a representation case – (1) Election could be rerun. – (2) Gissel Bargaining order due to unfair practices – To get hearing before a Court of Appeals, employer must refuse to bargain in good faith – The election issues are addressed when the unfair labor practice complaint reaches the court
Certification n Union Wins: – Union is the exclusive representative of the firm's employees – Duty to bargain in good faith – Presumption that union represents workers for at least one year after certification n Union Loses: – No formal organizing activity for one year
Reality: Few New Union Members Through NLRA Representation Elections n During FY 2004: – 2, 240 elections – 159, 806 eligible voters – 131, 253 votes cast – Size of bargaining unit: § 1 to 10: 20. 3% § 11 to 19: 19. 4% § 21 to 39: 20. 5% § 40 to 99: 22. 0% – Unions win – 57% – Employees in units unions win 79, 132
First Contract Negotiation n Winning unions do not always secure a first contract n NLRB does not keep tract of such statistics: – 20 year old study suggested that union obtains a first contract about 2/3 of the time – So # of workers that will be covered by a CBA less than the 79, 000 workers in units in which the union is certified as the exclusive representative n Strikes more likely at this stage
The Taft-Hartley Act n 1947 Amendments to the NLRA – Designed to limit union power – Government “neutrality” n List of union unfair labor practices n Decertification election process n “Devolve” to states regulation of “union security” clauses – “right to work” states
Section 8(b) of NLRA: Illegal to: n (1): Restrain or coerce employees in the exercise of their rights to join or to refrain from joining a labor organization – Duty to fair representation (2): Force an employer to discriminate against an employee (unless the employee refuses to pay union dues) n (3): Refuse to bargain collectively with an employer n
n n Section 8(b) of the NLRA: Illegal to: (4): Engage in a secondary boycott (5): Charge exorbitant initiation fees (6): Force an employer to pay for services that are not performed (7): Engage in “organizational” picketing to pressure an employer to recognize a union – Landrum Griffin Act of 1959 – Empowers the DOL to monitor & regulate internal union affairs.
SECONDARY BOYCOTTS n During a strike, a union seeks to encourage another employer to cease its business with the struck employer. – May not picket the “secondary'' employer – Contrast with Corporate Campaigns n The Ally Doctrine: Does the secondary employer cease to be a “neutral'' and become an “ally”? – When the employer aids a primary employer by doing “struck work” – When there is a relationship of “common ownership, and active common control'' between the primary and secondary employer
REGULATION OF STRIKES n Recognize as an essential practice used by unions for achieving bargaining objectives n The right to strike is protected – Union provides adequate notice – No picket line misconduct. (e. g. , restrictions on mass picketing, use of “strangers, ” physical abuse or threats on the picket line) n Policy challenge is that the NLRA also acknowledges the employer's right to “maintain operations”
Hiring Replacements Courts permit employers to hire “temporary” or “permanent” replacements for striking employees. n Economic Strikes: Permanent Replacements n – An economic strike is for better terms and conditions of employment n Unfair Labor Practice Strikes: Temporary Replacements – Strike is caused by or prolonged by the employer's unfair practices. E. g. , strike might be precipitated by an employer engaging in “surface” or “sham” bargaining during contract negotiations
Contract Administration n Long term collective bargaining agreements with meaningful "no strike" clauses depend on the parties agreeing to mechanisms for that resolve disputes that arise while the contract is in effect n Formal grievance arbitration procedures. – Resolve all disputes “as to the meaning, interpretation, and application of the provisions of [the contract]. " (Cox, Labor Law, p. 565). – The union agrees not to strike, unless the firm refuses to abide by the decision of the arbitrator.
Collective Bargaining Agreement is a plan for Industrial Self Government n Taft Hartley Act (1947): “Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement. ” n Supreme Court in Steelworkers Trilogy (1960): "[t]he function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. ”
Summary n U. S. (and Canadian) labor management relations are highly regulated – Recognizes incentives for and consequences of collective action – No regulation of outcomes Workers’ “right” to support or join unions is recognized by U. S. law. n These rights & union practices are balanced against employers’ rights to operate & maintain their business operations n Decentralized industrial relations environment. n
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